Terms and Conditions of Sale

SoundHealth Terms and Conditions of Sale

LAST UPDATED: FEBRUARY 20, 2023

SoundHealth Terms and Conditions of Sale

Last Updated:2/20/2024

Order and Acceptance. All sales made by SoundHealth to Customer for SoundHealth’s products (the “Products”) are subject to the terms and conditions of this General Terms and Conditions of Sale (this “Agreement”). SoundHealth will not be bound by any terms of any other document or terms that are additional or inconsistent with this Agreement. All orders for Products may be made by one of the following methods: a) received via SoundHealth’s website, or b) other methods created by SoundHealth from time to time (each an “Order”). Customers may purchase Products from SoundHealth, and in such case this Agreement will apply to their purchase and use of the Products. If there is a conflict between the applicable terms and conditions of this Agreement and an Order, the terms of the Order will control. No Order may be cancelled without SoundHealth’s written consent. Customer will be liable to SoundHealth for any additional costs and expenses incurred due to Customer’s cancellation of an Order.

Delivery, Shipping, Risk of Loss. Delivery dates and lead times are estimates only, not guarantees, and SoundHealth shall not be liable for any failure to deliver Products by any particular date. SoundHealth will use reasonable efforts to deliver Products at the times specified in SoundHealth’s acceptance of Customer’s Order. All Products delivered under this Agreement will be suitably packed for shipment in SoundHealth’s standard containers, marked for shipment to Customer’s address specified in Customer’s Order, and shipped FOB SoundHealth’s facility or SoundHealth’s fulfillment center (“Delivery Point”), at which point title and risk of loss to Product shall pass to Customer. All freight, insurance, and other shipping expenses, if any, associated with the transfer of Product ordered by Customer from the Delivery Point will be specified on the Order. SoundHealth may implement a shipping charge for any of the Products. SoundHealth only ships Products to the United States, and may decline to process any Orders that do not have a shipping address in the United States.

Use of Product. Customer shall use the Product in accordance with all applicable laws and the package insert therefore, including the instructions for use and terms set forth therein which can be found here, unless instructed otherwise by Customer’s doctor or healthcare professional.

Customer agrees to comply with all U.S. or other applicable laws regarding the transmission of any information obtained from a Product, not to use the Product for illegal purposes or in a manner inconsistent with this Agreement, and not to interfere with or disrupt the networks connected to the Product.

SoundHealth is not responsible for any liabilities arising from Customer’s use, non-use, or failure to comply with any applicable laws and regulations relating to the access and use of Products. Customer is solely responsible for ensuring that all Products purchased from SoundHealth are maintained in accordance with the accompanying manufacturer guidelines and instructions and are used, registered, or maintained in accordance with applicable federal, state, and local laws, including state prescription laws. Customer is solely responsible for properly maintaining any Products that it purchases from SoundHealth. Nothing herein shall imply that SoundHealth will be responsible or liable for Customer’s failure to properly manage and maintain its Products in accordance with the manufacturer instructions for use.

Your use of SoundHealth’s software and services will be governed by the Terms of Service, which can be found here.

Please note that some features of the Product and Services are not available in all areas where Customers are located. Additionally, some features require an opt-in on a location-by-location basis. Refunds will not be issued to you if certain features are not currently available in your area.

Purchase Price. Prices for the Product shall be SoundHealth’s standard list price or as defined on Order (“Price”). SoundHealth will invoice Customer based on the price and payment method established by the applicable Order for the Price of Product.

Payment Terms. Customer will pay for Products per the payment terms outlined on the Order. Customer will make payments in US dollars by credit card, check, or wire transfer to an account designated by SoundHealth. If you pay any fees with a credit card, then SoundHealth or its payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You may also be subject to additional terms and conditions from our payment processor. Purchases shall be shipped F.O.B. Destination, freight prepaid and charged back and made in accordance with such further terms (including returned goods policies) as set forth in SoundHealth’s product price list in effect on the date of shipment. Order placement, confirmation, and invoices for Products shall be sent by use of electronic data interchange, except where Customer does not have such capability. SoundHealth may suspend sales of the Products to Customer or terminate this Agreement with respect to Customer in the event that Customer delays payment or fails to pay any sum owed by Customer to SoundHealth hereunder.

Limited Warranty; Return Policy. For any questions regarding warranties and our return policy, please review the Limited Warranty and Return Policy found here.

Indemnification.

Customer. Customer agrees to indemnify, defend, and hold SoundHealth harmless from and against all claims, costs, damages, losses, liabilities, fines, penalties, and expenses (including without limitation reasonable attorneys’ fees) (collectively, “Liabilities”) arising as a result of or in connection with Customer’s negligence, willful default, breach of any material provisions of this Agreement, or violation of any applicable law, rule, regulation, or third party proprietary right, in connection with Customer’s use or non-use of the Products.

SoundHealth. SoundHealth agrees to indemnify, defend and hold Customer harmless from and against all Liabilities arising as a result of Customer’s use of the Products to the extent such claims arise out of or are based upon (i) the failure of the Products to function or perform in accordance with its specifications, (ii) defects in design, material or workmanship of the Products, (iii) injuries or damage to an ultimate user or other person caused by the Products, or (iv) other claims arising from the proper use of the Products in accordance with its documentation.

Exclusions. SoundHealth’s obligations in this Section will not apply if: (i) the Products are used for unauthorized purposes or by unauthorized personnel, (ii) Customer does not follow the required maintenance procedures or schedule, (iii) Customer was negligent in its use of the Products, (iv) there are shipping or delivery delays caused by a courier.

Procedure. In the event of any claim against a Party for which the Party claims a right of indemnification hereunder, the Party shall provide the indemnifying Party prompt written notice of such claim and reasonable information and assistance, at the indemnified Party’s expense, to defend or settle the claim. The indemnifying Party will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and the indemnifying Party, may not settle or compromise such claim, action or allegation, except with prior written consent of the indemnified Party.

Disclaimer of Warranties; Limitation of Liability. EXCEPT FOR THE LIMITED WARRANTIES STATED ABOVE, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND SOUNDHEALTH HEREBY EXPRESSLY DISCLAIMS ANY SUCH ADDITIONAL WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN NO EVENT SHALL SOUNDHEALTH BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES ASSOCIATED WITH THIS AGREEMENT OR THE PRODUCTS, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE, NOR WILL SOUNDHEALTH AT ANY TIME BE RESPONSIBLE FOR PERSONAL INJURY OR THE LOSS OR DESTRUCTION OF ANY OTHER PROPERTY RESULTING FROM THE PRODUCTS. IN NO EVENT SHALL SOUNDHEALTH’S LIABILITY TO CUSTOMER EXCEED THE FEES PAID TO SOUNDHEALTH IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM.

Term and Termination. This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party. Sections that by their nature should survive the expiration or termination of this Agreement shall survive any expiration or termination of this Agreement.

Disclosure of Discounts. To the extent applicable, in accordance with the discount provisions of the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), and the discount safe harbor regulations at 42 C.F.R. § 1001.952(h), Customer shall fully and accurately report all prices paid net of discounts where appropriate, and as appropriate, under any applicable payer reimbursement requirements and provide information upon request to applicable health care programs on all discounts and price reductions received from SoundHealth.

Software Updates. During the Term, updates to the Products’ software may become available from time to time, including safety related updates required for the safe operation of the Products. Customer agrees that SoundHealth shall have the right to remotely access the Products upon reasonable prior notice to install any and all such updates. If Customer does not permit SoundHealth to update the software in a timely fashion, SoundHealth may void the Products’ warranty and/or terminate this Agreement.

Confidentiality. Neither Customer nor SoundHealth shall disclose any of this Agreement to any third party or otherwise make such terms public, unless such Party receives the prior written approval of the other Party or such disclosure is required by law.

Recall. If SoundHealth is required by a regulatory agency to recall products, or SoundHealth voluntarily initiates a recall of products, Customer agrees to cooperate with and assist SoundHealth in locating and retrieving the recalled products. Customer shall promptly report to SoundHealth any complaints or other information regarding the products of which it becomes aware that could reasonably be expected to lead to recall or other regulatory action.

Data. SoundHealth may collect, use, and disclose certain information about your usage of the Products. Please review our Privacy Policy for more information.

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law provisions. Any dispute between the Parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in San Francisco County, California. The Parties hereby consent to the exclusive jurisdiction and venue of such courts.

Compliance with Laws. Customer shall comply with all federal, state and local laws, rules and regulations applicable to the purchase and use of the Products. In addition, as applicable, Customer shall obtain all permits and licenses required by federal, state or local authorities in connection with any of the Products and shall bear all expenses in obtaining such permits and licenses or in complying with any related rules, regulations, ordinances and statues. Products may be subject to the export laws and regulations of the United States and other countries. Any diversion or re-export contrary to, or any violation of, applicable export control laws and regulations is prohibited. Customer acknowledges that the SaaS services provided with the Products may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and shall not export, use or transmit the SaaS services (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.

Force Majeure. SoundHealth will use commercially reasonable efforts to fill orders but shall not be liable for any nonperformance or delays caused by shortage of raw materials, manufacturing problems, labor problems, acts of regulatory agencies, discontinuation of a product line, acts of God, or other causes beyond SoundHealth’s control. Customer agrees that in such events SoundHealth may allocate products among all purchasers without liability. In the event that SoundHealth ceases to manufacture or distribute any of the Products for any reason, SoundHealth shall have no obligation to supply such Products.

Intent. The Parties do not intend that any payments made under this Agreement be in return for the purchasing or ordering of any goods or services other than the specific Products described in this Agreement.

Independent Contractors. The Parties are acting independently and shall at all times act as independent contractors of each other in the manufacture and sale of the goods and are not partners, joint venturers, agents, or legal representatives of each other, for any purpose. Neither Party shall have any right or power to act for or bind the other, in any respect, to pledge its credit, to accept any service of process upon it, or to receive any notices of any nature whatsoever.

Miscellaneous. This Agreement, together with its exhibits, contains the entire agreement and understanding between the Parties on this subject matter. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger, or consolidation, without the prior written consent of SoundHealth. SoundHealth may freely assign this Agreement. This Agreement may be amended or waived only by a writing signed by an authorized representative of SoundHealth. For purposes of this Agreement, SoundHealth and Customer may each be referred to as a “Party” and collectively as the “Parties”. Any notice required or permitted under the terms of this Agreement or required by law must be in writing (email sufficient) and shall be deemed sufficiently given when received, if (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate at the addresses indicated in the applicable Order, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the applicable Order, or (d) sent to the email address indicated in the applicable Order. Either Party may change its address for notice by notice to the other Party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service. Customer acknowledges that Company may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Company, and Customer agrees that Company may use its name in such a manner, subject to Customer’s consent, which consent will not be unreasonably withheld.

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